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I have been posting at madisonian.net since 2004. From 2003 to 2011, I also wrote at Pittsblog, about regional economic development and the re-emergence of one particularly interesting city and region: Pittsburgh, Pennsylvania. Pittsburgh-themed posts will appear here from time to time.

I publish a related calendar of academic events in intellectual property and information technology law and policy at IP and IT Conferences.

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Revisionist Patent History

Today’s New York Times carries an op-ed by Timothy Lee that recalls Microsoft’s 1991 position on software patents and compares it to Microsoft’s position today. The piece has a great quote from Bill Gates and his earlier position:

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”

For me the most interesting part of the op-ed is the observation of how a company will switch its policy position depending on its place in the market. As Mr. Lee notes in 1991 Microsoft had six patents whereas today it has more than 6,000. The question seems to be whether one should accept that a corporation has seen some sort of new light or is simply a making the best argument based on its current state of affairs. To be clear I don’t know that one can fault the company for advancing its position in this manner. It may be that whenever one is in a position of weakness, one will argue that the rules are unfair until one is in a position to take advantage of the rules previously claimed to be unfair. In any event, Mr. Lee suggests that copyright already addresses software protection well enough and as such software patents are a necessary: “In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection.” More on this idea below the fold.

According to Mr. Lee the current patent dispute between Verizon and Vonage illustrates the software patent problem. Verizon has patented “the concept of translating phone numbers into Internet addresses” without which Mr. Lee argues one would find it “virtually impossible to create a consumer-friendly Internet telephone product.” He then suggests that the copyright system would be better suited to address software protection and that the patent system is redundant and/or unnecessary. The question of optimal protection for software is too large to unravel here. Still, it seems to me that copyright with its rather long term and (as Mr. Lee acknowledges) the ease with which one can obtain copyright protection could have as much if not more detrimental effect than the software patents to which he is opposed. I would offer Dan Burk and Mark Lemley’s Designing Optimal Software Patents which argues “Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents” as a place to begin investigating this question but also welcome input about this debate.

3 thoughts on “Revisionist Patent History”

Looks like the DOJ has gone through a similar conversion experience on antitrust matters involving MS:

“In the most striking recent example of the policy shift, the top antitrust official at the Justice Department last month urged state prosecutors to reject a confidential antitrust complaint filed by Google that is tied to a consent decree that monitors Microsoft’s behavior. Google has accused Microsoft of designing its latest operating system, Vista, to discourage the use of Google’s desktop search program, lawyers involved in the case said.”

You write “Still, it seems to me that copyright with its rather long term and (as Mr. Lee acknowledges) the ease with which one can obtain copyright protection could have as much if not more detrimental effect than the software patents to which he is opposed.”.

I completely disagree, and let me try to explain why. First of all, keep in mind that today we *HAVE* software copyrights. Under US law (and most other countries are similar) all code is copyrighted except the miniscule amounts that written for the US Govt or are intentionally granted to the public domain. (I don’t know of any code old enough to have passed out of copyright due to age, but it may exist.) Occasionally there are even lawsuits over copyright violations — SCO, for instance, accused IBM of copying some of its code and incorporating it into Linux.

To me, it feels somehow “fair” that when one person (or company or whatever) spends hours writing a program, that another cannot simply start using it (without permission). The important difference from patent law is that if person A has copyrighted something and person B wants to do the same thing, they MAY… they just have to do the work themselves. (Copyright law *is* robust enough to handle situations like an attempt to copyright a loop or some other basic pattern — there are allowances for similarity if it really does arise by coincidence not copying.)

This contrasts with patent protection where if person A has patented something then person B is out of luck. No matter how badly B wants it, no matter how hard B works, B isn’t allowed to do that thing without a license from A. And *that* is what obstructs progress.